





_ LIBRARY. 
UNIVERSITY OF ILLINOis 
URBANA 


Pct: 








SUPREME COURT OF OHIO. 


THE STATE OF OHIO, ON THE RELATION OF THE 
| ATTORNEY GENERAL, 
ea VS. : 
THE CINCINNATI GAS LIGHT AND COKE COM- 
PANY. 


Information and Pleadings in Quo Warranto. 


WRIGHTSON & CO.. PRINTERS. 167 WALNUT ST., 6 Ws 





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INFORMATION IN THE NATURE OF A QUO WARRANTO. 


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The State of Ohio, Franklin County, ss. In the 


Supreme Court of the State of Ohio. 





December Term, A. D., 1867. 





William H. West, Attorney General of the State of 


_» Ohio, who sues for the said State in this behalf, comes 


here before the judges of the Supreme Court of the said 


“State on the = day of December, in the year eighteen 
~ hundred a=d sixty-seven, at the December term thereof, 
~and for the said State of Ohio, gives the said Court here 


~ to understand and be informed, that the “Cincinnati Gas 


Light and Coke Company,” for the space of one year 


) now last past and upwards, at Cincinnati, in the county 


"3 2 of Hamilton, to-wit: at Columbus in the county of Frank- 


“lin aforesaid, in the said State, have used, and still do 


- 


use, without any warrant, grant or charter, the following 
liberties, privileges, and franchises, to-wit: that of being 
a body corporate and politic in law, fact and name. by 
the name of “The Cincinnati Gas Lizht and Coke Com- 
pany, and by the same name to plevd and be impleaded 
unto, answer and be answered untg; and also the follow- 
ing liberties, privileges and franchises, to-wit: that of 
having, and exercising an exclusive right to open and use 
the streets. Janes, alleys, commons and public grounds of 
the City of Cincinnati, for the introduction of pipes and 
other apparatus for gas, for the purpose of conveying gas 
to the said city and citizens thereof; and also the follow- 
ing liberties, privileges and franchises, to-wit: that of con- 
veying gas through pipes and other apparatus laid in the 
streets, lanes, alleys, commons and publie grounds of the 
said City of Cincinnati, and supplying the same to said 
ci‘y and the citizens, and charging as, and for the price 
thereof, at the rate of two dollars and filty cents for every 
thousand cubic feet thereof, to each consumer of the 
same; all which said liberties, privileges and franchises 
the said “The Cincinnati Gas Light and Coke Company” 
during all the time aforesaid, have usurped, and still do 
usurp upon the State of Ohio to its great damage and 
prejudice. Whereupon, the said Attorney General prays 
the advice and judgment of the said Court in the premi- 
ses, and due prosess of law against “The Cincinniti Gas 
Light and Coke Company” aforesaid in this behalf, to be 
made, to answer to the State of Ohio, by what warrant 
they claim to have use and enjoy the liberties, privileges, 
and franchises aforesaid. 


W. H. WEST, Allorney General. 


we 


ri BPAR) 


IN THE SUPREME COURT OF OHIO. 


ee ee ee 


mo MOVE INS: 


rr es 


THE STATE OF OHIO, ? 
City or CoLumBus.  § 


To the Sheriff of Hamilton County, Greeting : 


SS. 


You are commanded to notify “The Cincinnati Gas 
Light and Coke Company,” that William H. West, At- 
torney General within and for the State of Ohio, filed an 
information in the nature of a Quo Warranto against 
them in the Supreme Court of the State of Ohio, and 
that they are required to answer or plead to said informa- 
tion within thirty days from the return of this writ. 

You will make due service and return of this writ forth- 
with. 

Witness my hand and the seal of said 
[sea] Supreme Court of Ohio, at the city 
of Volumbus, this 3d day of Dee. 
1s67. 
RODNEY FOOS, 
Clerk Supreme Court of Ohio. 


IN THE SUPREME COURT OF OHTO. 


December Term, 1867. 


eed 


Tre Cincinnati Gas Ligut aNp Cuke Company, 


ads Pleas 
THE State oF OnIO ON THE RELATION OF THE AT- 3 


TORNEY GENERAL. 

And now in this same term, the said defendant, The 
Cincinnati Gas Light and Coke Company, come by E. A. 
Ferguson and Hoadley, Jackson and Johnson, their 
attorneys, and having heard the information read, say 
that under the color of the premises contained in said in- 
formation, they are greatly troubled, and this by no 
means justly; because, protesting that the said informa- 
tion, and the matters therein contained are not sufficient 
in law, and that they are not obliged by the law of the 
land to answer thereto, for plea, they say : 

1. That by an Act of the General Assembly of the 
State of Ohio, passed on the third day of April, in the 
year eighteen hundred and thirty-seven, it was enacted 
that certain persons therein named, and their associates 
were thereby created a body corporate and politic with 
perpetual succession, by the name and style of “The 


5 


Cincinnati Gas Light and Coke Company,” and by that 
name, they and their successors were declared to be capa- 
ble in law of contracting and being contracted with, sue- 
ing and being sued, defending and being defended in all 
courts and places, and in all matters whatsoever, with full 
power to acquire, hold, occupy, and enjoy all such real 
and personal estate as might be necessary and praper for 
the construction, extension and usefulness of the works 
of said Company, and for the management and good gov- 
ernment of the same, and to have a common seal, and the 
same to alter, break and renew at pleasure. 

And it was also in and by said act, enacted that the 
corpora‘ion thereby created should have full power and 
authority to manufacture and sell gas to be made from 
any ard all of the substances, or a combination thereof, 
from which inflammable gas is usually obtained, to be used 
for the purvose of lighting the City of Cincinnati, or the 
streets thereof, and any buildings, manufactories, public 
places or houses therein contained, and to erect necessary 
works and apparatus, and to lay pipes for the purpose of 
conducting the gas in any of the streets or avenues of 
said city, but before digging up or removing any of the 
streets cr a'leys of said city, the said corporation was 
fir.t to give notice to and obtain the consent of the City 
Council of said city, for that purpose. 

And the said Cincinnati Gas Light and Coke Company 
further say that on the 16th day of June in the year 
eighteen hundred and forty-one, the said city of Cincin- 
n.ti, by an Ordinance passed on that day by the City 
Council thereof for that purpose, made a contract with 
James I’. Conover, whereby it was, among other things, 
provided that said Conover, his associates, their heirs, as- 


6 


signs and successors, should be vested with the full and 
exclusive privilege of using the streets, lanes, commons, 
and alleys of said City of Cincinnati, for the purpose of 
conveying gas to the said city and citizens thereof for 
the term of twenty-five years from the date thereof, and 
thereafter until the same should be purchased by the said 
city as therein provided: and that they should have full 
and exc'usive power and authority to open and use the 
streets, lanes, commons and alleys of said city for the in- 
troduction of pipe and other apparatus for gas: and in 
consideration of the privileges thereby granted, the said 
Conover, for himself, his associates, their heirs, assigns 
and successors, agreed to furnish to the said city, on the 
several streets, lanes, commons and alleys to which the 
leading or main pipes for supplying the citizens thereof 
with gas light should be laid and in use, such quantity of 
gas as might be required by the said City Council for 
public lamps, at two-thirds of the lowest average price at 
which gas should or might be furnished to private indi- 
viduals in the cities of New Orleans, Baltimore, New York, 
Louisville and Pittsburg: the lamp posts,» connecting 
pipes, metres and lamps being furnished by, and at the 
expense of the said city—and for the like price to fur- 
nish gas for lamps at the Engine Houses, or other public 
building or bridges belonging to the said city, the said 
last mentioned lamps being subject to the same regula- 
tions as the other public lamps. 

And it was also in said contract, among other things, 
provided that said Conover, his associates, their heirs and 
assigns, and successors, should have laid within two years 
from the date thereof, six thousand feet of leading pipe 
for gas, and should lay arnually thereafter, four thousand 


7 


feet of leading pipe for gas, until the principal parts of 
the city should be furnished with pipes, and that at any 
time after the expiration of the said twenty-five years, 
the said City Council should have the right and privilege 
of purchasing from the said Conover, his associ.tes, their 
heirs, assigns and successors, their pipes, builcings, fix- 
tures and other apparatus owned and used by them, in 
and about providing the said city and citizens thereof 
with gas, at a fair price and compensation: and that said 
price and compensation should be ascertained and deter- 
mined by five disinterested persons, two of whom should 
be selected by the said City Council,and two by the said 
Conover, his associates, their heirs, assigns or successors, 
and the fifth by the four thus selected or chosen. And 
the Cincinnati Gas Light and Coke Company further say, 
that after the making of said contract, to-wit: on the 

day of A. D.,184 — , the said 
James F. Conover, associated with himself one James H. 
Caldwell, and assigned and transferred one-half of the 
rights and privileges thereof to him: That afterwards, 
to-wit: on the fifth day of September, 1842, the said 
Cunover and Caldwell assigned and transferred the said 
contract and all the privileges of lighting the said City 
of Cincinnati, and using the streets thereof for the pur- 
poses mentioned in said contract, to the said Cincinnati 
Gas Light and Coke Company, so incorporated as afore- 
said, which assignment was afterwards, to-wit: on the 
fourteenth day of September, A, D., 1842, made known 
to the said City Council, who thereupon, to-wit: on said 
last mentioned day, by a resolution passed for that pur- 
pose, consented to the said assignment, subject to the 


8 


terms and conditions in said contract specified, from which 
last mentioned time, the said Cincinnati Gas Light and 
Coke Company have, in all respects, done and performed 
the things which were required by said contract to be 
done and performed under it, by said James F. Conover, 
his associates, their heirs, assign and successors. 

Ané the said Cincinnati Gas Light and Coke Company 
further say that by force of the said Act of the said 
General Assembly, and the provisions thereof, they still 
continue to be, and are, a body corporate and politic, in 
fact and in name, and are entitled to do all lawful acts, 
and to enjoy all the rights, privileges, franchises and im- 
munities allowed to them or conferred on them by said 
act, or said contract, or by the law of the land, by virtue 
whereof the said Cincinnati Gas Light and Coke Compa- 


ny, for all the time in said information in that behalf 


mentioned, have used and exercised the liberties, privi- 
leges and franchises following, to-wit: that of being a 
body corporate and politic in law, fact and name, by the 
name of the Cincinnati Gas Light and Coke Company, 
and by the same name, to plead and be impleaded unto, 
answer, and be answered unto; and also, of having and 
exercising an exclusive right to open and use the streets, 
lanes, alleys and commons of the City of Cincinnati for 
the introduction of pipes and other apparatus for gas, for 
the purpose of conveying gas to the said city and ¢'ti- 
zezs thereof; and also that of conveying gas through 
pipes and other apparatus laid in the streets, lanes, alleys 
and commons of the said City of Cincinnati, and supply- 
ing the same to the said city and the citizens, and charg- 
ing as and for the price thereof, at the rate of two dol- 
lars and fifty cents for every thousand feet thereof, to 


~~ 


9 


each consumer of the same, other than the said city. 
And as to the residue of the liberties, privileges, and 
franchises in the said information above specified, upon 
the said State of Ohio, supposed to be usurped by the 
said Cincinnati Gas Light and Coke Company, they say 
they never used, nor do they now use, the residue of the 
said liberties, privileges and franchises: without this, that 
the said Cincinnati Gas Light and Coke Company, the 
said liberties, privileges, and franchises in said informa- 
tion above mentioned, or any of them, have usurped, and 
did usurp, upon the said State of Ohio, in manner and 
form as by the said information is above alleged against 
them; all of which the said defendants are ready to 
- verify and prove as the Court shall award. 

Wherefore they pray judgment, and that the said 
liberties, privileges and franchises may be ailowed and 
adjudged to them. 


2. And for a further plea in this behalf; the defendants 
say, that by an Act of the General Assembly of the 
State of Ohio, passed on the third day of April, in the 
year eighteen hundred and thirty-seven, it was enacted 
that certain persons therein named, and their associates 
were thereby created a body corporate and politic, with 
perpetual succession, by the name and style of “The 
Cincinnati Gas Light and Coke Company,” and by that 
name they and their successors were declared to be capa- 
ble in law, of contracting and being contracted with, sue- 
ing and being sued, defending and being defended, in all 
courts and places and in all matters whatsoever, with full 
power to acquire, hold, occapy and enjoy all such real 
and personal estate as might be necessary and proper for 


10 


the construction, extension and usefulness of the works 
of said company, and for the management, and good 
government of the same, and to have a common seal, and 
the same to alter, break, and renew at pleasure. 

And it was also, in and by said Act, enacted that the 
corporation thereby created should have full power and 
authority to manufacture and sell gas, to be made from 
any and all of the substances, or a combination thereof, 
from which inflammable gas is usually obtained, to be 
used for the purpose of lighting the City of Cineimna‘i, 
or the streets thereof, and any buildings, manufacturies, 
public places or houses therein contained, and to erect 
necessary works and apparatus, and to lay pipes for the 
purpose of conducting the gas in any of the streets or ave- 
nues of said city, but before digging up or removing any 
of the streets or alleys of said city, the said corporation 
was first to give no‘ice to, and obtain the consent of the 
City Council of said city, for that purpose. 

And the said Cincinnati, Gas Light and Coke Company 
further say, that on the 16th day of June, in the year 
eighteen hundred and forty-one, the said City of Cincin- 
nati, by an Ordinance passed on that day, by the City 
Council for that purpose, made a contract with one James 
F. Conover, whereby it was, among other things, provi- 
ded that said Conover, his associates, their heirs, assigns 
and successors, should be vested with the full and exclu- 
sive privilege of using the streets, lanes, commons and 
alleys of s.id City of Cincinnati, for the purpose of con- — 
veying gas to the said city and citizens thereof, for the 
term of twenty-five years from the date thereof, and 
thereafter, until the same should be purchased by the said 
city as therein provided ; and that they should have full 


11 


and exclusive power and authority to open and use the 
streets, lanes, commons and alleys of said city for the in- 
troduction of pipe and other apparatus for gas; and in 
consideration of the privileges thereby granted, the said 
Conover, for himself, his associates, their heirs, assigns, 
and successors, agreed to furnish to the said city, on the 
several streets, lanes, commons, and alleys, to which the 
leading or miin pipes for supplying the citizens thereof 
with gas light, should be laid and in use, such quantity of 
gas as might be required by the said City Council for 
public lamps, at two-thirds of the lowest average price at 
which gas should or might be furnished to private indi- 
viduals, in the cities of New Orleans, Ballimore, New 
York, Louisville and Pittsburg; the lamp posts, connect- 
ing pipes, metres and lamps being furnished by, and at 
the expense of the said city, and for the like price to fur- 
nish gas for lamps at the engine houses, or other public 
buildings, or bridges belonging to the said city, the said 
last mentioned lamps being subject to the same regula- 
tions as other public lamps. 

And it was also in said contract, among other things, 
provided that said Conover, his associates, their heirs, as- 
signs and successors, should have laid, within two years 
from the date thereof, six thousand feet of leading pipe 
for gas, and should lay annually thereafter, four thous- 
and feet of leading pipe for gas, until the principal parts 
of the city should be furiished with pipes, and that at 
any time after the expiration of the said twenty-five 
years, the said City Council should have the right and 
privilege of purchasing from the said Conover, his asso- 
ciates, their heirs, assigns or successors, their pipes, build- 


12 


ings, fixtures and other apparatus owned and used by 
them in and about providing the said city and citizens 
thereof with gas at a fair price and compensation; and 
that said price and compensation should be ascertained 
and determined by five disinterested persons, two of whom 
should be selec‘ed by the said City Council, and two by 
the suid Conover, his associites, their heirs, assigns or 
successors, and the fifth by the four thus selected or 
chosen. 

And the said Cincinnati Gas Light and Coke Company 
further say, that after the making of siid contract, to- 
wit: on the day of , 184 , the sid 
James F. Conover, associated with himself one James H. 
Caldwell, and assigned and trinsferred one-half of all the 
lights and privileges thereof to him. That afterward, 
to-wit: on the fifth day of September, 1842, the said 
Conover and Caldwell assigned and transferred the said 
contract, and all the privileges of lighting said City of 
Cincinnati, and using the streets thereof for the purpose 
mentioned in said contract, to the said Cincinnati Gus 
Light and Coke Company, so incorporated as aforesaid. 
which assignment was afterwards, to wit: on the four- 
teenth day of September, A. D., 1842, made known to 
said City Council, who thereupon, to-wit: on said last 
mentioned day, by a resolution passed for that purpose, 
consented to the said assignmen, subject to the terms 
and condition in said contract specified ; from which last 
mentioned time, the said Cincinnati Gas Light and Coke 
Company have, in all respects, done and performed the 
things which were required, by said contract, to be done 
and performed under it, by said James F. Conover, his 
associates, their heirs, assigns and successors. 


138 


And the said Cincinnati Gas Light and Coke Company 
further say, that by the force of said Act of the General 
Assembly, and the provisions thereof, they still continue 
to be, and are a body, corporate and politic, in fact and 
in name, and are entitled to do all lawful acts, and to 
enjoy all the rights, privileges, franchises and immunities 
allowed to them, or conferred on them, by said Act, or 
said contract, or by the law of the land; by virtue 
whereof, the said Cincinnati Gas Light and Coke Compa- 
ny, for all the time in said information in that behalf 
mentioned, and for twenty years prior to the filing of 
the same, have used and exercised the liberties, privileges 
and franchises following, to-wit: that of beinga body cor- 
porate and politic in law, fact and name, by the name of 
The Cincinnati Gas Light and Coke Company, and by 
the same name to plead and be impleaded unto, answer 
and be answered unto, and also of having and exercising 
an exclusive right to open and use the streets, lanes, al- 
leysand commons of the City of Cincinnati, for the in- 
troduction of pipes and other apparatus for gas; for the 
purpose of conveying gas to the said city and citizens 
thereof; and also that of conveying gas through pipes 
and other apparatus laid in the streets, lanes, alleys and 
commons of the said City of Cincinnati, and supplying 
the same to the said city and citizens thereof, at the rate 
of two dollars and fifty cents for every thousand cubic 
feet thereof, to each consumer of the same, other than 
the said city. 

And as to the residue of the liberties, privileges and 
franchises in the said information above specified, upon 
the said State of Ohio, supposed to be usurped by the 
said Cincinnati Gas Light and Coke Company, they say 


14 


they never used, nor do they now use, the residue of said 
liberties, privileges and franchises—without this—that 
the said Cincinnati Gas Light and Coke Company, the 
said liberties, privileges, and franchises in said informa- 
tion above mentioned, or any of them, have usurped or 
did usurp, upon the said State of Ohio, in manner and 
form as by the said information, is above alleged against 
them; all which the said defendants are ready to verify 
and prove, as the Court shall award. 

Wherefore, they pray judgment, and that the sad liber- 
ties, privileges, and franchises may be allowed and ad- 
judged to them. 


8. And for a further plea in this behalf the defend- 
ants say, that by an Act of the General Assembly of the 
State of Ohio, passed on the third day of April, in the 
year eighteen hundred and thirty-seven, it was enacted 
that certain persons therein named, and their associates, 
were thereby created a body corporate and _ politic, with 
perpetuil succession by the name and style of “The 
Cincinnati Gas Light and Coke Company,” and by that 
name, they and their successors were declared to be capa- 
ble in law of contracting and being contracted with, sue- 
ing and being sued, detending and being defended, in all 
courts and places, and in all matters whatsoever, with full 
power to acquire, hold, occupy and enjoy all such real 
and personal estate as might be necessary and proper for 
the construction, extension and usefulness of the works of 
said company, and for the management and good govern- 
ment of the same, and to have a common seal, and the 
same to alter, break, and renew at pleasure. ) 

And it was also, in and by said Act, enacted that the 


15 


corporation thereby created, should have full power and 
authorily to manufacture and sell gas to be made from 
any and all of the substances, or a combination thereof, 
from which inflammable gas is usually obtained, to be 
used for the purpose of lighting the City of Cincinnati, 
or the streets thereof, and any buildings, manulfactories, 
public places. or houses therein contained, and to erect 
necessary works and apparatus, and to lay pipes for the 
purpose of conducting the gas, in any of the streets or 
avenues of said city. 

And the said Cincinnati Gas Light and Coke Company 
farther say, that by force of the said Act of the said 
General Assembly, and the provisions thereof, they still 
continue to be. and are a body corporate and politic in 
fact and in name, and are entitled to do all lawful acts, 
and to enjoy all the rights, privileges, franchises, and im- 
munities allowed to them, or conf rred on them by said 
Act, or by the law of the land; by virtue whereof, the 
said Cincinnati Gas Light and Coke Company, fcr all the 
time in said information in that behalf mentioned, and for 
twenty years prior to the filing of the same, h-ve used 
and exercised the liberties, privileges and franchises fol- 
lowing. to-wit: that of being a body corporate and poli- 
tic in law, fact and name, by the name of the Cincinnati 
Gas Light and Coke Company, and by the same name to 
plead and be impleaded unto; answer and be answered 
unto; and also of having and exercising an exclusive 
right to open and use the streets, lanes, alleys and com- 
mons of the City of Cincinnati for the introduction of 
pipes and other apparatus for gas, for the purpose of 
conveying gas to the said city and citizens thereof; and 
also that of conveying gas through pipes and other appa- 


16 


ratus laid in the streets, lanes alleys and commons of the 
said City of Cincinnati, and supplying the same to the 
said city and the citizens thereof, and charging as and for 
the price thereof, at the rate of two dollarsand fifty cents 
for every thousand cubic feet thereof, to each consumer 
of the same, other than the said city. 

And as to the residue of the liberties, privileges and 
franchises in the said information above specified, upon 
the State of Ohio, supposed to be usurped by the said 
Cincinnati Gas Light and Coke Company, they say they 
never used, nor do they now use, the residue of the said 
liberties, privileges and franchises—without this—that 
the said Cincinnati Gas Light and Coke Company, the 
said liberties, privileges, and franchises in said informa- 
tion above mentioned, or any of them, have usurped, and 
did usurp, upon the said State of Ohio, in manner and 
form, as by the said information is above alleged against 
them; all of which the said defendants are ready to 
verify and prove, as the Court shall award. 

Wherefore, they pray judgment, and that the said 
liberties, privileges and franchises may be allowed and 
adjudged to them. 


4. And for a further plea in this behalf, the said Cin- 
cinnati Gas Light and Coke Company say that hereto- 
fore, to-wit: on the 24th day of September, 1858, T. A. 
O’Conner, then being the Prosecuting Attorney of Hamil- 
ton county, in sud State of Ohio, upon the relation of 
Samuel M. Hart, upon leave granted in the vacation of 
the District Court of the State of Ohio, in and for the 
fifth circuit thereof, being the said county of Hamilton, 
by the Honorable, A. G. W. Carter, one of the judges of 


re 


tT 


said Court, filed an information in the nature of guo war- 
ranto in the said District Court, whereby the said Prose- 
cuting Attorney for the said State of Ohio, gave the 
Court then to understand and be informed, that the said 
Cincinnati Gas Light and Coke Company, was a corpo- 
ration, having the principal place of business in the City 
of Cincinnati, county of Hamilton aforesaid, created by 
and under the laws of the State of Ohio, organized pur- 
suant to an Act of the Legislature, entitled “ An Act to 
Incorporate the Cincinnati Gas Light and Coke Com- 


pany,” passed April 3d, 1837, and the Acts amending 


the same. That by the terms and provisions of said Act 
incorporation, the said Cincinnati Gas Light and Coke 
Company was empowered and authorized to manufacture 
and sell gas to be made from any or all of the substances, 
or a combination thereof, from which inflammable gas is 
usually obtained, and to be used for the purpose of light- 
ing the City of Cincinnati, or the streets thereof, and any 
buildings, manufactories, public places or houses therein 
contained, and to erect necessary works and apparatus 
and to lay pipes for the purpose of conducting the gas in, 
any of the streets, or avenues of the said city. 

That it was further enacted by section six of said Act, 
that any future Legislation might alter, modify or repeal 
said Act. That by the terms of an Act of the Legisla- 
ture, entitled “ An Act to amend an Act to provide for 
the organization of cities and incorporated villages,” 
passed March 11, 1853, the said Act of incorporation 
was so altered and modified that the City Council of said 
Ciry of Cincinnati was authorized and empowered to 
regulate by ordinance of said City Council, from time to 
time, the price which said Cincinnati Gas Light and Coke 


18 


Company should charge for any gas furnished by said 
Company to the citizens, public buildings, lanes, streets 
or alleys in said City of Cincinnati. And that it was 
further enacted by the terms of provisions of said Act, 
that the said Company should in no event charge more 
for any gas furnished to said city or to individuals, than 
the specified by Ordinance of said City Council. 

And that it was further provided by said Act that a 
neglect to furnish gas to the citizens or other consumers 
of gas, or to said City of Cincinnati, by said Company, 
in conformity to the provisions of said Act, and in accor- 
dance with the prices fixed and established by Ordinance 
of said City Council, from time to time, should forfeit 
all rights of said Company under the charter by which it 
had been established. 

That in pursuance of the said authority so conferred, 
the said City Council of Cincinnati, on August 31,1853, 
duly passed an Ordinance entitled “ An Ordinance regula- 
ting the price which the Cincinnati Gas Light and Coke 
Company should charge for gas furnished by said Com- 
pany to the citizens, or for pub‘ic buildings, streets, lanes, 
alleys, public landings, and commons, in the City of Cin- 
cinnati;” whereby it was ordained by sud City Council 
of the City of Cincinnati, that from and after the first 
day of September, in the year 1853, the price which the 
Cincinnati Gas Light and Coke Company, should charge 
for gas furnished by said Company to the Citizens or pri- 
vate consumers, or for public buildings, council-chamber, 
offices, court-rooms, station or engine-houses, including 
buildings owned by the county of Hamilton, should be 
two dollars and twenty-five cents for each thousand cubic 
feet and no more. 


18 


That the said defendant, the Cincinnati Gas Light and 
Ceke Company had wholly disregarded the requirements 
and obligations imposed upen it by said Ordinance of the 
City Ceuncil, and had failed, neglected, and refused, at 
the county aforesaid, to furnish gas to the citizens and 
other consumers ef gas, in said City of Cincinnati, at the 
rate per thousand cubic feet as fixed and established by 
said City Council as aforesaid, and the said defendant 
had wrongfully and persistently exacted from the said 
citizens and ether consumers of gas, at least two dollars 
and fifty cents for each and every thousand eubie feet of 
gas consumed by said citizens and other consumers of 
gas; and the said Cincinnati Gas Light and Coke Com- 
pany had thereby worked a forfeiture of its cerporate 
rights, privileges and franchises. 

Wherefore judgment was demanded, that the defen- 
dant, the Cincinnata Gas Light and Coke Company, be 
excluded from all corporate rights, privileges and franchi- 
ses, and that said corporation be disselved. 

That afterwards, to-wit: on the 29th day of October, 
A. D., 1858, the said Cincinnati Gas Light and Coke 
Company filed in said District Court their several pleas 
to said infermatien, the first ef which was as fellows: 

“ And now the defendants, the Cincinnati Gas Light 
“ and Ceke Company come by their attorney, and having 
“ heard the said information read, they say they ought 
“ not to be troubled by the said State ef Ohio, by reason 
“ of the premises in said information specified, because 
“ protesting that the said information and the matters 
«therein contained, are not sufficient in law, te which 
“ said Cincinnati Gas Light and Coke Cempany are not 
“ hound to answer unto, by the law of the land, yet for 


20 


“ plea in this behalf, say that the Legislature of the State 
“of Ohio, by a certain Act passed on the third day of 
“ April, in the year 1837, entitled ‘An Act to incorpo- 
“rate the Cincinnati Gas Light and Coke Company,’ 
* did enact that the persons therein named, and their as- 
“ sociates and successors, should be created a body cor- 
“porate and politic, with perpetual succession, by the 
« name of the Cincinnati Gas Light and Coke Company, 
“ and by that name should be capable of contracting and 
“ being contracted with, sueing and being sued, and have 
full power to acquire, hold, occupy and enjoy all such 
“real and personal estate as might be necessary and 
“ proper for the construction, extension and usefulness of 
“the works of siid Company. That said Company 
“ should have full power and authority to manufacture 
* and sell gas, to be used for the purpose of lighting the 
“ City of Cincinnati, or the streets thereof, and any build- 
“ ings, manufactories, public places, or houses therein con- 
“ tained, and to erect necessary works and apparatus, 
“ and to lay pipes for the purpose of conducting the gas, 
“in any of the streets or avenues of the said city.” 

“ It was also provided in and by said Act, that said 
“ Company should be liable in its corporate capacity, in 
“all the capital stock, moneys and effects, for all the 
“ debt or debts at any time owing by said Company, and 
“ the effects of said Company be insufficient to satisfy all 
“ demands against the same, then the individual stock- 
“ holders of said Company should be held individually 
“ liable for ali unsatisfied claim against the Company in 
“ proportion to the amount of stock held or owned by — 
“them respectively, and by the sixth section of the Act 
“ it was provided that any future legislation might modify, 


21 


“ alter or repeal said Act. All of which will more fully 
“ appear, by reference to said act of incorporation.” 

“They further say that on the 16th day of June, 1841, 
“ the City of Cincinnati, by Ordinance passed by the City 
“ Council of Cincinnati, of that date, entered into a con- 
“ tract with James I. Conover, in which Ordinance and 
“ contract, it was ordained that said Conover, his asso- 
“ ciates, their heirs and assigns, should be, and they were 
“ thereby vested with the full and exclusive privilege of 
“using the streets, lanes, commons and alleys of said 
“ City of Cincinnati, in the State of Ohio, for the pur- 
“pose of conveying gas to the said city and citizens 
“ thereof, for the term of twenty-five years from the date 
“ thereof, and thereafter until the same should be pur- 
“ chased by the City Council of Cincinnati, as therein 
“ provided for, and should have full and exclusive power 
“and authority to open and use the streets, lanes, com- 
“ mons and alleys for the introduction of pipe and other 
“ apparatus for gas; and in consideration of the privileges 
“thereby granted to said Conover, his associates, their 
“ heirs and assigns, he and they should furnish to the said 
“ city, on the several streets, lanes, commons and alleys 
“in which the leading or main pipes for supplying the 
“ citizens with gas light should be laid and in use, such 
“ quantity of gas as might be required by the City Coun- 
“ cil for public lamps, at two-thirds of the lowest aver- 
“ age price at which gas should or might be furnished to 
“ private individuals in the cities of New Orleans, Balti- 
“ more, New York, Louisville, and Pittsburgh ; the lamp 
“ posts, connecting pipes, meters, and lamps being fur- 
“ nished by and at the expense of said city.” 

“ It was further provided in and by said Ordinance 


22 


“ and contract, that the privileges thereby granted should 
“ not be forfeited by any temporary failure on the part 
“ of said Conover, and his associates, their heirs and 
“ assigns, to perform any of the conditions from them 
“ exacted, (except as to the commencement of said works) 
“ when such failures are occasioned by aceident, untoward 
“ events, or the want of necessary repairs in the ma. 
“ chinery or apparatus of said gas works.” 

“Tt was further provided, that any time after the expi- 
“ration of the said twenty-five years, the said City 
“ Council should have the right and privilege of pur- 
“cha mg from said Conover, his associates, their heirs 
“ and assigns or suceessors, their pipes, buildings, fixtures 
“and other apparatus, owned and used by them, in and 
“ about providing the city and crttzens with gas, at a fair 
“ price and compensation, which price was to be ascer- 
“tained and determined by five disinterested persons, two 
“ of whom should be seleeted by the City Couneil, and 
“ two by said Conover, his associates, their heirs, assigns 
“ or suecessors, and the fifth by the four thus selected or 
“ chosen, the terms of which Ordinance were accepted 
“ by said James F. Conover, who, afterwards, on the 
“ day of assigned and trarsferred the one- 
“half of said contract, and all the nghts and privileges 
“ thereof, to James H. Caldwell.” 

“ The defendants further say, that after the Cineinnati 
“ Gas Light and Coke Company become duly organized 
“under said charter, the said James F. Conover and 
“ James H. Caldwell, for valuable consideration, on the 
= day of assigned . and transferred the 
“said contract, and all the privileges of lighting the said 
“City of Cincinnati, and using the streets thereof for 


23 


“the purposes mentioned in said contract, to the Cincin- 
“nati Gas Light and Coke Company, so incorporated as 
“ aforesaid, and waich assignment was afterwards made 
“ known to the City Council of the City of Cincinnati, 
“on the 14th day of September, 1842, on which day 
“ the said City Council passed a resolution, which after 
“reciting said assignment, resolved that the Council 
“thereby recognize the said Cincinnati Gas Light and 
“ Coke Company, as the assignee of all the rights and 
“ privileges granted to the said James F. Conover, and 
“ his assigns, upon the terms and conditions which are 
“ specified in the said Ordinance of the 16th of June, 
“1841. And the defendants insist, by virtue of said 
“ Ordinance so made, and of the acceptance thereof, by 
“said James F. Conover, and by virtue of the assignments 
“ so made as aforesaid, the defendants become invested 
“with the exciusive privilege of lighting the City of 
“ Cincinnati with gas, and of furnishing the city and citi-. 
“ zens of Cincinnati with gas for the period of twenty- 
“ five years upon the terms mentioned and set forth in 
“ said Ordinance, and which contract they claim can not 
“ be altered, modified, or in any way changed, by any 
“ legislation of the State of Ohio, or by any Ordinance 
“of the City Council of the City of Cincinnati, and de- 
“‘fendants deny that the City of Cincinnati has ever 
“ been charged a larger price fur gas consumed by said 
“city on the several streets, lanes, commons and alleys 
“ of suid city, than two-thirds of the lowest average price 
“at which gas has been furnished to private individu- 
‘‘ als in the cities of New Orleans, Baltimore, New York, 
“ Louisville and Pittsburgh.” 

“And the defendants deny that the Legislature or 


24 


“ General Assembly of the State of Ohio, has ever passed 
“any law altering or modifying the said Act entitled ‘An 
“ Act to incorporate the Cincinnati Gas Light and Coke 
“Company. All of which the defendants are ready to 
“ verify and plead in bar of the plaintiff’s proceedings.” 

“ And afterwards, to-wit: on the 5th day of May, 
“ 1859, the said State of Ohio filed its demurrer to the 
“ said first plea of the said Cincinnati Gas Light and 
‘¢ Coke Company, averring that the same, and the mat- 
“ ters and things therein set forth, were not sufficient in 
“law to bar or preclude the State of Ohio from having and 
“ maintaining its said action against the said Cincinnati 
“ Gas Light and Coke Company, and by reason of the 
“ insufficiency of said plea in that behalf, the said State 
“ of Ohio prayed judgment, &c.” 

That afterwards, to-wit: on the llth day of May, in 
the April term of said District Court, 1859, the following 
judgment was entered in said cause, to-wit: | 

“This cause came on to be heard on the plea filed by 
“ the defendant and the demurrer of the piaintiff thereto, 
‘and was argued by counsel, and the Court having duly 
“ considered the same, find the said first plea filed, is 
“ valid in law, and that the facts in said plea set forth, 
“are a bar to the relief sought by the plaintiff in the in- 
“ formation in this cause. It is therefore ordered and 
“ adjudged that the demurrer filed by said plaintiff, be 
“ overruled; and the plaintiff not desiring to proceed 
“ further in the case, ib is further ordered and adjudged 
“ that the plaintifi’s information be dismissed, and that 
“ the defendant go hence without day.” All of which 
will more fully appear by the record of said case now 
remaiuing in the said District Court. 


25 


And the said Cincinnati Gas Light and Coke Com- 
pany, further say that said judgment of said District 
Court, is in full force and unreversed. 

And the said Cincinnati Gas Light and Coke Compa- 
ny, have claimed, and yet do claim to have, use and enjoy 
all the liberties, privileges and franchises to them belong- 
ing, by virtue of the aforesaid Act of the said Legisla- 
ture, and the said contract as it was adjudged by the said 
District Court, lawful for them to do, without this, that 
the said Cincinnati Gas Light and Coke Company have 
charged the said city, as and for the price of gas fur- 
nished to it, at the rate of two dollars aud tifty cents for 
every thousand cubic feet thereof; and without this, that 
the said Cincinnati Gas Light and Coke Company have 
usurped the said liberties, privileges and franchises upon 
the said State of Ohio, in manner and form as by the said 
information is above supposed. All of which said several 
matters and things they, the said Cincinnati Gas Light 
and Coke Company are ready to verify as the Court shall 
award. 

Wherefore, they pray judgment, and that the afore- 
said liberties and franchises, in form aforesaid claimed by 
them, may, for the future be allowed to them, and that 
they may be dismissed and discharged by the Court 
hereof, and from the premises aforesaid, 

HK. A. FERGUSON. 
Hoap.ey, JACKSON & JOHNSON, 


Attorneys for Defendant. 


IN THE SUPREME COURT OF OHIO. 








December Term, 1867. 


Pad 








In Quo Warranto. 
THE STATE OF OHIO 


— Replications 
THE CINCINNATI GAS LIGHT, >» and 
AND COKE COMPANY. na 


And the said William H. West, Attorney General of 
the State of Ohio, who for the said State prosecutes in 
this behalf as to the said pleas of the said Cincinnati 
Gas Light and Coke Company, by it first and secondly 
above pleaded, saith, that for anything therein alleged, 
the said State ought not to be barred from having and 
maintaining its aforesaid information, because, protesting 
that the said pleas are insufficient in law, for replication, 
nevertheless, in this behalf, the said Attorney General 
saith that true it is that the General Assembly of the 
State of Ohio, on the 3d day of April, 1837, passed the 
Act in said pleas stated, but the said Attorney General 
further saith, that neither the said Cincinnati Gas Light 
and Coke Company. nor the persons acting under such 
name and style, are the persons named in said Act of the 


27 


General Assembly, nor their associates, nor the successors 
of such persons, or of their associates, and this he prays 
may be inquired of by the country, &c. 

And the said William 4. West, Attorney General for 
a further replication in this behalf saith, that true it is 
that the General Assembly of the State of Ohio on the 
dd day of April, 1837, passed the Act in said pleas sta- 
ted, and that the City Council of the City of Cincinnati, 
on the 16th day of June, 1841, passed the Ordinance in 
said pleas stated, but the said Attorney General further 
saith, that the said Cincinnati Gas Light and Coke Com- 
pany did not during the time mentioned in said informa- 
tion, nor at any time, have or exereise an exelusive right 
to open and use the streets, lanes, alleys and commons of 
said city for the introduction of pipes and other apparatus 
for gas, for conveying gas to the said city and citizens 
thereof as alleged in said pleas, or otherwise, and this he 
prays may be inquired of by the country, &e. 

And the said William H. West, Attorney General, for 
a further replication in this behalf saith that true it is 
that the said Cincinnati Gas Light and Coke Company 
did charge as the price of gas supphed and furnished to 
the citizens of said City of Cincinnati, at the rate of two 
dollars and fifty cents for every thousand cubic feet there- 
of, as alleged in said pleas, but the said Attorney General 
further saith that the said General Assembly, by an Act 
passed on the 5th day of April, 1854, provided: “That 
“after the passage of this Aet it shail be lawful for the 
“City Couneil of any city in which a gas company has 
“been or may be hereafter established, to fix from time 
“to time, by Ordinance the minimum price at which such 
“ council shall require such eompany te furnish gas to the 


28 


“ citizens or public buildings of such city, or for the pur- 

“ pose of lighting the alleys and public grounds thereof 
“for any period not exceeding ten years; and from and 
“ after the assent of said company to such Ordinance, by 

“a written acceptance thereof, filed in the Clerk’s office of 
“ such city, it shall not be lawful for said City Council to 

“ require the said company to furnish gas to the citizen’s, 

“ public buildings, public grounds or public lamps of such 

“ city ata less price during the period agreed on, not ex- 
“ ceeding ten years as aforesaid; provided that this Act 
“ shall not operate to impair or effect any contract here- 

“‘ tofore made between any city and gas light, or gas light 
“and coke company,” and that the City Council of the 
City of Cincinnati, on the 14th day of August, 1867, by 

an Ordinance duly passed provided, “That for the period 
“ of one year from and after the first day of September, 

“ A. D., 1867, the Cincinnati Gas Light and Coke Com- 

“nany shall furnish gas of the standard quality to the 
“ public buildings of the City of Cincinnati, and to citi- 
‘* zens or private consumers at the rate of two dollars for 
“ each one thousand cubic feet so furnished, and shall not 
“‘ charge any greater sum than that herein specified ; 
“ provided, however, nothing herein is to be construed as 
‘a waiver by the city of her right to obtain possession 
“ of the works of said company as provided by contract: 
“ therewith.’ And this he is ready to verify and there- 
fore prays judgment, Xe. 

And as to the said pleas of the said Cincinnati Gas 
Light and Coke Company, by it thirdly and fourthly 
above pleaded, the said William H. West, Attorney Gen- 
eral of the State of Ohio comes and says that the same 
@re not, nor 1s either of them sufficient in law to bar the 


29 


said State from having and maintaining the aforesaid in- 
formation against it, the said Cincinnati Gas Light and 
Coke Company, and he the said William H. West, Attor- 
ney General is not bound by the law of the land to an- 
swer the same, and this he is ready to verify, wherefore, 
for want of a sufficient plea and answer in this behalf he 
prays judgment, and that the said Cincinnati Gas Light 
and Coke Comp:ny with the said liberties, privileges and 
franchises may in no way intermeddle, but may be alto- 
gether excluded from the same. 
W. H. WEST, Attorney General. 


iN THE SUPREME COURT OF OHIO, 


~~" —— 





December Term, 1867 


—e eee 





Quo Warranio, 
THE STATE OF OHIO 


ws Rejoinders 
THE CINCINNATI GAS LIGHT( 7 and i 
AND CGKE COMPANY. DEMUTTELS» 


And the said defendant at the same term now comes 
and as to the first replication of the said State says that 
the same is not in law a sufficient replication to the mat- 
ters and things in said first and second pleas pleaded nor 
is it bound to answer to said replication, and this it is 
ready to verify, wherefore it prays judgment. 

2. And as to the said second replication of the said 
State, said defendant saith that in law it isnot a sufficient 
replication to the matter and things by it pleaded, nor is 
it bound to answer the same—further, and for cause of 
special demurrer it shows that said replication does not 
aver that any person or corporation other than this defen- 
dant did, during the time mentioned in said information 
have or exercise any right to open and use the streets, 
lanes, alleys and commons of said city for the introduc- 


81 


tion of pipes and other apparatus for gas, for conveying 
gas to the said city and citizens thereof, and this it is 
ready to verify, wherefore it prays judgment. 

3. And as to the said third replication of the said 
State, said defendant protesting that the same is insuffi- 
cient in law, and that it ought not to be obliged to make 
answer thereto, nevertheless for rejoinder saith that in 
and by a certain decree in chancery of the Circuit Court 
of the United States within and for the 6th Circuit and 
Southern District of Ohio in a certain cause therein pen- 
ding, wherein said Court had acquired jurisdiction, and 
in which Sophia C. Deane was complainant and this de- 
fendant, and the City of Cincinnati, and others were de- 
fendants, and had appeared as such at the October term, 
1867, it was by the judgment and consideration of said 
Court in Equity sitting decreed that this defendant 
should be and it thereby was and now is enjoined and re- 
strained from obeying, and the said city and all citizens 
thereof from enforcing or attempting to enforce said 
Ordinance by said City Council on the 16th day of 
August, 1867, passed and which is the same Ordinance 
in said replication alleged, which decree was when said 
information was filed and is still in full force and effect, 
and this the defendant is now hereby to show for the in- 
spection of this Court, as by the 1ecords and proceedings 
in said Circuit Court will more fully appear, reference 
whereto is now here had and made, and this itis ready to 
verify, and therefore prays judgment. 

4. And further as to the said third replication of the 
said State, said defendant protesting that the same is in- 
sufficient in law, and that it ought not to be obliged to 
make answer thereto, nevertheless, for further rejoinder 


32 


saith that it never has assented to said Ordinance, nor 
has it in writing filed in the Clerk’s office of said city or 
otherwise accepted the same, and this it is ready to 
verify, and therefore prays judgment. 

5. And for further rejoinder to the said third replica- 
tion of the said State said defendant protesting that the 
same is insufficient in-law, and that it ought not to be 
compelled to make answer thereto, nevertheless, for fur- 
ther rejoinder saith that on the first day of March, 1867, 
the City Council of the City of Cincinnati passed the fol- 
lowing resolution : 

Resolved, That the City Council do now proceed to 
select and appoint two disinterested persons, to act on 
behalf of the city to ascertain a fair price and compen- 
sation that shall be paid by the City of Cincinnati for the 
C.ncinnati Gas Light and Coke Company’s works, and 
all the appurtenances thereto belonging. 

And said resolution having been passed, said City 
Council appointed Miles Greenwood and Henry Kessler 
as such appraisers, both of whom then were and still are 
gas consumers and tax payers in said city, and said 
Kessler was then and still is an officer of said city, to- 
wit : a trustee of the water-works thereof: 

And then and there the said City Council directed the 
Mayor of said city to notify the defendant of the pass- 
age of said resolution, and the choice of said appraisers, 
and to request this defendant to appoint a like number of 
appraisers, that said gas works might be fully and fairly 
valued and placed in possession of said city in accordance 
with said contract, which said Mayor then and there by 
writing to that effect did. 

And afterward on the day of 1867, 


. 4 
ae 


33 


this defendant in the belief that the said city did intend 
to purchase the property and rights of this company, at 
the valuation fixed by an appraisement by five disinter- 
ested appraisers, as 1t might lawfully do, did appoint 
Henry Day, Esq, of New York City, and Oliver G. 
Steele, Esq., of Buffalo, two competent, impartial and 
disinterested persons as appraisers on its behalf, and 
thereupon said Kessler, Greenwood, Day and Steele met 
at said city afterwards, upon the 18th day of May, and 
at divers other days and times, ‘by adjournment, for the 
purpose of selecting a fifth appraiser under said contract, 
and then proceeding to value said property and rights, 
and said Day and Steele offered and proposed to said 
Greenwood and Kessler the following names of competent, 
impartial and disinterested persons, any one of whom 
they were ready and willing to unite with said Kessler 
and Greenwood in appointing as fifth appraiser as afore- 
said, viz.: Hon. James Speed, of Louisville, Kentucky, 
late Attorney General of the United States; Hon. Bland 
Ballard, of the same city, Judge of the United States 
District Court for the District of Kentucky; Hon. 
Joseph R. Swan, of Columbus, Ohio, once a Judge of 
this Court; John W. Andrews, Esq., of the same city ; 
Hon. Charles T. Sherman, of Cleveland, Ohio, Judge of 
the District Court of the United States for the Northern 
District of Ohio; Hocking H. Hunter, Esq., of Lan- 
caster, Ohio; Henry B. Payne, Esq., of Cleveland, Ohio; 
Hon. William H. West, of Bellefontaine, Ohio, Attorney 
General as aforesaid; Theodore R. Scowden, of Cleveland, 
Ohio; Oran Follett, of Sandusky City, Ohio; R. A. 
Harrison, Esq., of London, Ohio; Simon Gebheart, Esq., 


3 
/ 


34 


of Dayton, Chio; Samuel Williamson, Esq., of C’eveland, 
Ohio; M. R. Waite, Esq., of Toledo, Chio, and Reuben 
Hitchcock, Esq., of Painsville, Ohio, each and every one 
of which said Kessler and Greenwood rejected and 
refused to select as said fifth appraiser, and in lieu 
thereof, said Greenwood and Kessler proposed the fol- 
lowing named persons, any one of which they were 
willing to choose as said fifth appraiser, viz.: Wiliam 
Hooper, Lewis Worthington, Thompson Neave, George 
W. Skzats, Jason Evans and David Sinton, of Cincinnati, 
Ohio; Dr. Oliver W. Nixon, of Columbia, Ohio, and 
Abraham M. Taylor, of Burlington, New Jersey, all of 
whom were then and are now tax-payers and gas con- 
sumers of Cincinvati aforesaid, and said Nixon was and 
is in the employ of said Greenwood, and each of the 
said persons being rejected by said Day and Steele for 
said reason, said Greenwood and Kessler then and there 
declared and avowed that they would consent to elect no 
one as such fifth appraiser, unless he should be interested 
in the result thereol, by being a tax payer of said city, 
or otherwise subject to the influences of the interests of 
the government and people of said city. All which 
action of said Kessler and Greenwood was prompted and 
suggested by a Committee appointed by the sud City 
Council, for the pretended purpose of attending to the 
interests of said city and representing her bcfore said 
appraisers, and was in collusion with, and in pursuance 
of, a secret underst nding with a majority of the members 
of said City Council, and for the fraudulent purpose of 
depriving this defendant of a fair and honest appraise- 
ment, and full compensation for its said property and 
rights. And this defendant alleges that in furtherance 


<4 


35 


of sud fraudulent purpose, a secret meeting was held at 
the office of one of the members of said. Committee, at 
which were present a majority of the members of said 
City Council, viz.: Being those only who were privy to 
said design, and their attorneys, and at said meeting it 
was resolved by those present, that for the purpose of 
compelling this defendant to waive any objection it 
might lawfully make to the choice of a fifth appraiser, 
who should be partial and interes‘ed, and for the purpose 
of preventing a f.ir and honest appraisement aforesaid, 
and for the purpose of harassing and impeding the 
defendant in the management of its property, aud throwing 
doubts over the value of its franchises during the further 
progress of such appiaisement, the ordinance described 
in said replication should be passed by said City Council 
and enforced upon this defendant, said persons composirg 
said meeting well knowing that the price named in said 
ordinance was not, and is not, an adequate and fair price 
and comyensation for gas in said city, and believing th's 
defendant would sooner submit to an unjust and inade- 
quate appraisement than to the enforcement of such an 
ordinance, and thereupon to carry out said fraudulent 
purpose, said ordinance was introduced into said Council, 
and by the same members of said Council who composed 
said secret meeting, adopted as an ordinance of said 
city, all which actings and doings were, and are, dishonest 
and unlawful, and abusive of the power gran‘ed to said 
Council for the government of said city and the manage- 
ment of itsaffairs. Wherefore it says that said ordinance 
has no binding force and efficacy as an ordinance or | .w 
of said city. And this itis ready to verily, and there- 
fore prays Judgment, ete. 


56 


And the said Cincinnati Gas Light and Coke Company 
for a further rejoinder on this behalf, says that the said 
State of Ohio ought not to be admitted or received to 
plead the said replication, by it thirdly above pleaded, 
because it says that heretofore, to-wit : 

On the 24th day of September, 1858, T. A. O’Connor, 
then being the Prosecuting Attorney of Hamilton County, 
in said State of Ohio, upon the relation of Samuel M. 
Hunt, upon leave granted in the vaction of the District 
Court of the State of Ohio, in and for the Fifth Circuit 
thereof, being the said County of Hamilton, by the Hon. 
A. G. W. Carter, one of the Judges of said Court, filed 
an information in the nature of quo warranto in the 
said District Court, whereby the said Prosecuting Attorney 
for the said State of Ohio, gave the Court then to 
understand and be informed, that the said Cincinnati 
Gas Light and Coke Company was a corporation, having 
the principal place of business in the city of Cincinnati, 
County of Hamilton aforesaid, created by and under the 
laws of the State of Ohio, organized pursuant to an Act 
of the Legislature, entitled “An Act to incorporate the 
Cincinnati Gas Light and Coke Company,” passed April 
3, 1837, and the acts amending the same. That by the 
terms and provisions of said Act of incorporation, the said 
Cincinnati Gas Light and Coke Company was empowered 
and authorized to manufacture and sell gas, to be made 
from any or all of the substances, or a combination 
thereof, from which inflammable gas is usually obtained, 
and to be used for the purpose of lighting the city of 
Cincinnati, or the streets thereof, and any buildings, 
manufactories, public places, or houses therein contained, 
and to erect necessary works and apparatus, and to lay 


37 


pipes for the purpose of conducting the gas in any of 
the streets or avenues of the said city. 

That it was further enacted by Section 6 of said Act, 
that any future legislation might alter, modify or repeal 
said Act. 

That by the terms of an Act of the Legislature, 
entitled ““An Act to amend an Act to provide for the 
organization of cities and incorporated villages,” passed 
March 11, 1853, the said Act of incorporation was so 
altered and modified that the City Council of said city of 
Cincinnati, was authorized and empowered to regulate by 
ordinance of said City Council, from time to time, the 
price which said Cincinnati Gas Light and Coke Company 
should charge for any gas furnished by said Company to 
the citizens, public buildings, lanes, streets or alleys in 
said city of Cincinnati. And that it was further enacted 
by the terms of provisions of said Act, that the said 
Company should in no event charge more for any gas 
furnished to said city, or to individuals. than the price 
specified by ordinance of the City Council. And that it 
was further provided by said Act that a neglect to furnish 
gas to the citizens or other consumers of gas, or to the 
said city of Cincinnati, by said Company, in conformity 
to the provisions of said Act, and in accordance with the 
prices fixed and established by Ordinance of said City 
Council, from time to time, should forfeit all rights of 
said Company under the charter by which it had been 
established. 

That in pursuance of the said authority so conferred, 
the said City Council of Cincinnati, on August 31, 1853, 
duly passed an Ordinance, entitled, “ An Ordinance regu- 
lating the price which the Cincinnati Gas Light and Coke 


38 


Company should charge for gas furnished by said Com- 
pany to the citizens, or for public buildings, streets, 
lanes, alleys, pubic landings and commons in the city of 
Ciacinaati,” whereby it was ordained by said City Council 
of the city of Cincinnati, that from and after the first 
lay of September, in the year 1853, the price which the 
Cincinnati Gas Light and Coke Company should charge 
for gas furnished by said Company to the citizens or 
private consumers, or for public baildings, Council 
Chamber, offices, court-rooms, station or engine-houses, 
including buildings owned by the County of Hamilton, 
should be two dollars and twenty-five cents for each 
thousand cubic feet and no more. 

That the said defendant, the Cincinnati Gas Light and 
Coke Comp iny, had wholly disregarded the requirements 
and obligations imposed upon it by said ordinance of the 
City Council, and had failed, neglected and refused, at 
the county aforesaid, to furnish gas to the citizens and 
other consumers of gas, in said city of Cincinnati, at the 
rate per thousand cubic feet as fixed and established by 
said City Council aforesaid, and the said defendant had 
wrongfully and persistently exacted from the said citizens 
and other consumers of gas, at least two dollars and fifty 
cents for each and every thousand cubic feet of gas con- 
sumed by said citizens and other consumers of gas; 
and the said Cincinnati Gas Light and Coke Company had 
thereby worked a forfeiture of its corporate rights, privi- 
leges and franchises, 

Wherefore judgment was demanded that the defendant, 
the Cincinnati Gas Light and Coke Company, be excluded 
from all corporate rights, privileges and franchises, and 
that said corporation be dissolved. 


59 


That afterward, to wit: On the 29th day of October, 
A. D. 1858, the said Ciccinnati Gas Light and Coke 
Company filed in said District Court their several p'eas 
to said information, the first of which was as follows: 

“And now the defendants, the Cincinnati Gas Light 
“and Coke Company, come by their attorney, and having 
“heard the s.idinformation read, they say they ought not 
“to be troubled by the said State of Ohio, by reason of 
“the premises in said information specified, because, pro- 
“testing that the said information and the matters therein 
“con‘ained, are not sufficient in law, to which said Cincin- 
“nati Gas Light and Coke Company are not bound to 
“answer unto by the law of the land, yet for plea in this 
“behalf, say that the Legis‘ature of the State of Ohio, by 
“a certain Act passed on the third day of April, in the 
“ vear 1837, entitled ‘An Act to incorporate the Cincinnati 
“Gas Light and Coke Company,’ did enact that the persons 
“therein named, and their associates and successors, should 
“be created a body, corporate and politic, with perpetual 
“succession, by the name of the Cincinnati Gas Light and 
“Coke Company, and by that name should be capable of 
“contracting and being contracted with, sueing and being 
“sued, and have full power to acquire, hold, occupy and 
“enjoy all such real and personal estate as might be 
“necessary and proper for the construction, extension and 
‘usefulness of the works of said Company. 

«That said Company should have full power and 
“authority to manufacture and sell gas, to be uscd for the 
“purpose of lighting the City of Cincinnati, or the streets 
“ thereof, and any buildings, manufactories, public places, 
“or houses therein contained, and to erect necessary works 
‘and apparatus, and to lay pipes for the purpose of con- 


40 


“ducting the gasin any of the streets or avenues of said 
“city. 

“Tt was also provided in and by said Act, that said 
“Company should be liable in its corporate capacity, in all 
“the capital stock, moneys and effects, for all the debt cr 
“debts at any time owing by said Company, and should 
“the effects of said Company be insufficient to satisfy all 
“demands against the same, then the individual stock- 
“holders of said Company should be held individually 
“liable for all unsatisfied claims against the Company, in 
“proportion to the amount of stock held or owned by 
“them respectively, and by the sixth section of the Act 
“it was provided that any future legislation might modify, 
“alter or repeal said Act—all which will more fully appear 
“by reference to said Act of incorporation. 

“ They further say that on the 16th day of June, 1841, 
“the City of Cincinnati, by Ordinance passed by City 
“ Council of Cincinnati, of that date, entered into a contract 
“with James I’. Conover, in which ordinance and contract 
“it was ordained that said Conover, his associates, their 


“heirs and assigns should be, and they were thereby vested 


“with the ful and exclusive privilege of using the streets, 
“Janes, commons and alleys of said city of Cincinnati, in 
“the State of Ohio, for the purpose of conveying gas to 
“said city and citizens thereof, for the term of twenty-fivé 
“years from the date thereof, and thereafter until the same 
“should be purchased by the City Council of Cincinnati, 
‘“‘as therein provided for, and should have full and exclusive 
“power and authority to open and use the streets, lanes, 
“commons and alleys, for the introduction of pipe and 
“other apparatus for gas; and in consideration of the 
“privilege thereby granted to said Conover, his associates, 


va 


41 


“their heirs and assigns, he and they should furnish to 
“the said city, on the several streets, lanes, commons and 
“alleys, in which the leading or main pipes for supplying 
“the citizens with gas light should be laid and in use, such 
“quantity of gasas might be required by the City Council 
“for pub:ic lamps, at two-thirds of the lowest average price 
“at which gas shouid or might be furnished to private 
“individuals in the cities of New Orleans, Baltimore, New 
“York, Louisvilleand Pittsburg, the lamp-posts, connecting 
‘pipes, metres and lamps being furnished by and at the 
“expense of the said city. 

“Tt was further provided in and by said Ordinance and 
“contract, that the privileges thereby granted should not 
“be forfeited by any temporary failure on the part of said 
“ Conover and his associates, their heirs and assigns, to 
“perform any of the conditions from them exacted, (except 
“as to the commencement of said works) when such 
“failures are occasioned by accident, untoward events, or 
“the want of necessary repairs in the machinery or appa- 
“ratus of said gas works. It was further provided that 
‘any time after the expiration of the said twenty-five 
“vears, the said City Council should have the 1ight and 
“privilege of purchasing from said Conover, his associates, 
“their heirs and assigns, or successors, their pipes, build- 
“ings, fixtures and other apparatus, owned and used by 
“them, in and about providing the city and citizens with 
“oas, at a fair price and compensation, which price was to 
“be ascertained and determined by five disinterested per- 
“sons, two of whom should be selected by the City Council, 
“and two by said Conover, his associates, their heirs and 
“assigns, or successors, and the fifth by the four thus 
“selected or chosen, the terms of which Ordinance were 


42 


“ aecepted by James I’. Conover, who afterward on the 
“dav of , asigned and transferred the one-half 
“of said contract, and all the rights and privileges thereof, 
*to James H. Caldwell. 

“The defendants further say, that after the Cincinnati 
“Gas Light and Coke Company became duly organized 
“under said charter, the said James F’. Conover and James 
“Tf. Caldwell, for valuable consideration, on the day of 

, assigned and transferred the said contract, 
“and all the privileges of lighting the said City of Cin- 
“¢innati, and using the streets thereof for the purpose 
“mentioned in said contract, to the Cincinnati Gas Light 
“and Coke Company, so incorporated as aforesaid, and 
“which assignment was afterward made known to the City 
“Council of the City of Cincinnati, on the 14th day of 
“ September, 1842, 0n which day the said City Council 
“passed a resolution, which, after reciting said assignment, 
“ resolved that the City Council thereby recognize the said 
“ Cincinnati Gas Light and Coke Company as the assignee 
*‘ of all the rights and privileges granted to the said James 
“]* Conover and his assigns, upon the terms and conditions 
“which are specified in the said Ordinance of 16th of 
“ June, 1841. 

“ And the defendants insist, by virtue of said ordinance 
“so made, and of the acceptance thereof by said James F 
“ Conover, and by virtue of the assignments so made as 
“aforesaid, the defendants became invested with the 
‘exclusive privilege of lighting the City of Cincinnati with 
“oas, and of furnishing the city and citizens of Cincinnati 
“with gas for the period of twenty-five years, upon the 
“terms mentioned and set forth in said Crdinance, and 
“which contract they claim can not be altered, modified, 


—-— 


48 


“or in any way changed, by any legis'ation of the State 
“of Ohio, or by any ordinance of the City Council of the 
“ City of Cincinnati, and defendants deny that the city of 
“ Cincinnati has ever been charged a larger price for gas 
“consumed by said city on the several streets, lanes, 
“commons and alleys of said city, than two-thirds of the 
“lowest average price at which gas has been furnished to 
“ private individuals in the cities of New Orleans, Baltimore, 
“New York, Louisville and Pittsburg. 

“And the defendants deny that the Legis'ature or 
“General Assembly of the State of Ohio has ever pass: d 
“any lawaltering or modifying the said Act, entitled ‘An 
«Act to incorporate the Circinrati Gas Light and Coke 
“Company,” all which the defendants are ready to verify 
“and plead in the bar of the plaintilf’s proceedings.” 

And afterwards, to-wit: Gn the &th day of May, 1 59, 
the said State of Ohio filed its demurrer to the said first 
plea of the said Cincinnati Gas Light and Coke Company, 
averring that the same, and the matter and things therein 
set forth, were not sufficient in law to bar or preclude the 
State of Ohio from having and maintaining ils said 
action against the said Cincinnati Gas Light and Coke 
Company, and by reason of the insufficiency of said plea 
in that behalf the State of Ohio prayed judgment, ete. 

That afterw rds, to-wit: On the 11th day of May, in 
the April Term of said District Court, 1859, the following 
judgment was entered in said cause, to-wit : 

“This cause c.me on to be heard on the plea filed by 
“the defendant and the demurrer of the plaintiff there‘o, 
“and was argued by counsel, and the Court having duly 
“considered the same, find the said first plea filed, is 
“valid in law, and that the facts in said plea set forth 


44 


“area bar to the relief sought by the plaintiff in the 
“information in the cause. It 1s, therefore, ordained and 
“adjudged that the demurrer filed by said plaintiff be 
“overruled; and the plaintiff not desiring to proceed 
“further in the case, it is further ordered and adjudged 
“that the plaintiff’s information be dismissed, and that 
“the defendant go hence without day.” 
All of which will more fully appear by the record of 
said case, now remaining in the said District Court. — 
And the said Cincinnati Gas Light and Coke Company 
further say that said judgment of said District Court is 
in full force and unreversed ; and this it is ready to verify. 
Wherefore, the said Cincinnati Gas Light and Coke 
Company prays judgment, if the said State ought to be 
admitted or received against the said record, to plead the 
replication by it thirdly above pleaded. 
EK. A. FERGUSON. 
Hoapiey, Jackson & JouNson, 
Attorneys for Defendant. 


IN THE SUPREME COURT OF OHIO. 








December Term, 1867. 








Quo Warranto. 


THE STATE OF OHIO D 
CMUTTET 


US. 
THE CINCINNATI GAS LIGHT( pp... to . 
AND COKE COMPANY. ejoinders. 


And the said Wiliiam H. West, Attorney General of 
the State of Ohio, who, for the said State, prosecutes in 
this behalf, as to the said rejoinders of said defendant, 
the Cincinnati Gas Light and Coke Company to the third 
replication of the said State, saith that the same are 
not, nor is either of them, sufficient in law to bar or 
preclude the said State from having and maintaining the 
aforesaid information against the said defendant; and 
this he is ready to verify: wherefore, for want of a suffi- 
cient rejoinder in this behalf, he prays judgment, and 
that the said Cincinnati Gas Light and Coke Company 
with the said liberties, privileges and franchises, &¢., may 
in no way intermeddle, but may be altogether excluded 
from the same. 


W. H. WEST, Attorney General. 








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SUPREME COURT OF OHIO. 


December Term, 1868. 


THE STATE OF OHIO, 
On the Relation of the Attorney General, 
Vs. Fifth Plea, 
THE CINCINNATI GAS LIGHT AND 
COKE COMPANY. 


And now come the said defendants, and by leave of 
the Court, for a further plea in this behalf, say, 
that by an Act of the General Assembly of the 
State of Ohio, passed on the third day of April, in the 
year eighteen hundred and thirty-seven, it was enacted 
that certain persons therein named, and their associates, 
were thereby created a body corporate and politic, with 
perpetual succession, by the name and style of “The 
Cincinnati Gas Light and Coke Company,” and. by that 
name, they and their successors were declared to be capa- 
ble in law of contracting and being contracted with, sue- 
ing and being sued, defending and being defended in all 
courts and places, and in all matters whatsoever, with full 
power to acquire, hold, occupy, and enjoy all such real 
and personal estate as might be necessary and proper for 
the construction, extension and usefulness of the works 
of said company, and for the management and good gov 


48 


ernment of the same, and to have a common seal, and the 
same to alter, break and renew at pleasure. 

And it was also in and by said act, enacted that the 
corporation thereby created should have full power and 
authority to manufacture and sell gas to be made from 
any ard all of the substances, or a combination thereof, 
from which inflammable gas is usually obtained, to be used 
for the purvose of lighting the City of Cincinnati, or the 
streets thereof, and any buildings, manufuctories, public 
places or houses therein contained, and to erect necessary 
works and apparatus, and to lay pipes for the purpose of 
conducting the gas in any of the streets or avenues of 
said city, but before digging up or removing any of the 
streets or alleys of said city, the said corporation was 
first to give notice to and obtain the consent of the City 
Council of said city, for that purpose. 

And the said Cincinnati Gas Light and Coke Company 
further say, that on the 16th day of June, in the year 
eighteen hundred and forty-one, the said City of Cincin- 
nati, by an Ordinance passed on that day by the City 
Council thereof for that purpose, made a contract with 
James I’. Conover, whereby it was, among other things, 
provided that said Conover, his associates, their heirs, as- 
signs and successors, should be vested with the full and 
exclusive privilege of using the streets, lanes, commons, 
and alleys of said City of Cincinnati, for the purpose of 
conveying gas to the said city and citizens thereof for 
the term of twenty-five years from the date thereof, and 
thereafter until the same should be purchased by the said 
city as therein provided: and that they should have full 
and exclusive power and authority to open and use the 
streets, lanes, commons and alleys of said city for the in- 


49 


troduction of pipe and other apparatus for gas; and in 
consideration of the privileges thereby granted, the said 
Conover, for himself, his associates, their heirs, assigns 
and successors, agreed to furnish to the said city, on the 
several streets, lanes, commons and alleys to which the 
leading or main pipes for supplying the citizens thereof 
with gas light should be laid and in use, such quantity of 
gas as might be required by the said City Council for 
public lamps, at two-thirds of the lowest average price at 
which gas should or might be furnished to private indi- 
viduals in the cities of New Orleans, Baltimore, New York, 
Louisville and Pittsburg; the lamp posts, connecting 
pipes, metres and lamps being furnished by, and at the 
expense of the said city—and for the like price to fur- 
nish gas for lamps at the Engine Houses, or other public 
buildings or bridges belonging to the said city, the said 
last meutioned lamps being subject to the same regula- 
tions as other public lamps. . 

And it was also in said contract, among other things, 
provided that said Conover, his associates, their 
heirs, assigns and successors, should have laid, within 
two years from the date thereof, six thousand 
feet of leading pipe for gas, and should lay annually 
thereafter, four thousand feet of leading pipe for gas, 
until the principal parts of the city should be fur- 
nished with pipes, and that at any time after the 
expiration of the said twenty-five years, the said 
City Council should have the right and privilege of 
purchasing from the said Conover, his associates, their 
heirs, assigns or successors, their pipes, buildings, fix- 
tures and other apparatus, owned and used by them in 
and about providing the said city and citizens thereof 


50 


with gas, at a fair price and compensation; and 
that said price and compensation should be ascei- 
tained and determined by five disinterested persons 


two of whom should be selected by the said City Council, 


and two by the said Conover, his associates, their heirs, 
assigns or successors, and the fifth by the four thus se- 
lected or chosen. | 

And the said Cincinnati Gas Light and Coke Company 
further say, that after the making of said contract, to- 
wit: on the day of , 184 , the said 
James IF. Conover, associated with himself one James H. 
Caldwell, and assigned and transferred one-half of all the 
rights and privileges thereof to him: That afterwards, 
to-wit: on the fifth day of September, 1842, the said 
Conover and Caldwell assigned and transferred the said 
contract and all the privileges of lighting the said City 
of Cincinnati, and using the streets thereof for the pur- 
poses mentioned in said contract, to the said Cincinnati 
Gas Light and Coke Company, so incorporated as afore- 
said, which assignment was afterwards, to-wit: on the 
fourteenth day of September, A, D., 1842, made known 
to the said City Council, who thereupon, to-wit: on said 
last mentioned day, by a resolution passed for that pur- 
pose, consented to the said assignment, subject to the 
terms and conditions in said contract specified; from 
which last mentioned time, the said Cincinnati Gas 
Light and Coke Company have, in all respects, done and 
performed the things which were required, by said con- 
tract, to be done and performed under it, by said James 
I’. Conover, his associates, their heirs, assigns and suc- 
Cessors. 

And the said Cincinnati Gas Light and Coke Company 


NM 


51 


further say, that on the 31st day of August, 1853, the 
City Council of the City of Cincinnati passed an Ordi- 
nance, whereby they required said company to furnish 
gas to the citizens or private consumers, in said city, at 
the rate of two dollars and twenty-five cents per one 
thousand cubic feet, and no more, for the amount used, 
and that said company thereafter, for more than eleven 
months continuously, refused and neglected to furnish 
gas to said citizens or private consumers, in said city, at 
said rate, and, thereupon, on the 23d day of August, 
1854, said Council, for the purpose of renewing and re- 
affirming said grant of said exclusive right to these de- 
fendants, duly passed an Ordinance, whereby they re- 
enacted said Ordinance passed June 16, 1841, but pro- 
vided therein that’ the right of said city to purchase, as 
aforesaid, might be exercised by said city, at any time 
after the expiration of twenty-five years from the date 
of the passage of said Ordinance originally, to-wit: on 
June 16, 1841, and not from the date of the re-enact- 
ment thereof, and these defendants then and there ac- 
cepted said re-enacted Ordinance, and since said 23d day 
of August, 1854, as also before that date, and ever since 
said 16th day of June, 1841, have fully kept and per- 
formed all and singular the requiremements and condi- 
tions of said original and re-enacted Ordinance, have 
laid much more than four thousand feet of leading pipe 
for gas annually, so that in all they have laid more than 
ninety miles of such pipe, in said city, and that the 
principal parts of said city are furnished with pipes, have 
purchased real estate, built gas-holders. and, in all, at the 
date of the commencement of this suit by the filing of 
said information, had expended in money in the construc- 


d2 


tion of Gas Works and appurtenances necessary to the 
performance of said contract, more than the sum of 
$1,930,587 ; had entered into separate written contracts 
with more than ten thousand five hundred and sixty- 
eight private consumers of gas, whereby they had bound 
themselves to said consumers respectively, to furnish 
them with supplies of gas, of the standard quality, for 
their several use and consumption, and had supplied the 
public lamps of said city with gas, during all said time, 
at the price of two-thirds the lowest average price at 
which gas was furnished, during said time, to private 
individuals in the cities of New Orleans, Baltimore, New 
York, Louisville and Pittsburg. 

And the defendants further aver that, on the 23d day 
of August, 1866, the following preamble and resolution 
was adopted by the City Council of the City of Cincin- 
nati: 

“Wuereas, The General Assembly of the State of 
Ohio passed an Act on the 6th day of April, A. D. 
1866, entitled ‘An Act to authorize cities of the first- 
class to issue bonds for the purchase of Gas Works,’ in 
which it is provided ‘That no portion of said bonds shall 
be issued until after the question of the purchase of the 
Gas Works shall be submitted to a vote of the qualified 
electors of said city, at a special election to be held for 
that purpose, to be ordered by the City Council of said 
city, of which not less than twenty days notice shall be 
given in all the daily papers of said city; and further 
provided, that at such election the majority of said elec- . 
tors shall decide in favor of such purchase,” and 

“Whereas, We deem it expedient and proper, that 
instead of entering into any further contract with the 
Cincinnati Gas Light and Coke Company, the question 
of the purchase of said Works, be referred to the people 


53 


jor their decision at a special election, as is provided by 
law; therefore, be it 

“ Resolved, By the City Council of the City of Cin- 
cinnati, that the Mayor be, and he is hereby instructed 
to issue his proclamation calling a special election of the 
qualified voters of the City of Cincinnati, to be held at 
the usual places of voting in all the wards, on Tuesday, 
the 9th day of Cctober, A. D. 1866, for the purpose of 
voting for or against the purchase of the Cincinnati Gas 
Light and Coke Company’s Works, and that the City Clerk 
have printed a sufficient number of two sets of ballots, to 
be distributed at the voting place of each ward. Upon 
one set shall be printed : 


“SPECIAL ELECTION. 
To decide for or against the purchase of the Cincinnati 
Gas Light and Coke Company’s Works, 


FOR THE PURCHASE OF THE GAS WORKS. 
And upon the other set of ballots shall be printed : 


“SPECIAL ELECTION. 


To decide for or against the purchase of the Cincinnati 
Gas light and Coke Company’s Works, 


AGAINST THE PURCHASE OF THE GAS WORKS.” 


“ And that there shall be provided a separate ballot box 
at each voting place, and there shall be three judges and 
two clerks specially appointed to conduct the election in 
each ward.” 

And the said defendants aver that said special election 
was duly held as provided in said resolution on Tuesday, 
the 9th day of October, 1866, and that a majority of the 
electors of said city voted at said election “for the pur- 
chase of the Gas Works,” and afterwards on the 16th of 


54 


November, 1866, the said City Council passed the fol- 
lowing resolution : 

Resolved, That a committee of five, to include the Presi- 
dent of Council, be appointed to recommend to Council 
not less than five suitable persons to be ballotted for as 
appraisers, upon the part of the City, of the Cincinnati 
Gas Light and Coke Co.’s Works, and the two of said 
persons receiving the highest number and a majority of all 
the votes cast, by Council, at such ballotting, shall be the 
appraisers upon the part of the City, to meet a like number 
appointed upon the part of the said Company, who shall 
proceed to appraise the pipes, buildings, fixtures and 
other apparatus owned and used by said company in and 
about providing the citizens with gas, in accordance with 
section 7 of this ordinance contracting with James F. 
Conover and associates, to furnish the city with gas, 
passed June 16th, A. D.1841. And that said committee 
be authorized to procure a clerk, if they should deem it 
advisable, and proceed to other cities for the purpose of 
obtaining all necessary information upon the subject of 
the manufacture of gas, cost of construction of gas works, 
and everything of interest bearing upon the subject; and, 
also, to report to Council what legislative action, if any, is 
necessary in order to authorize the city to procure money 
for the purchase of said works. 


And the said defendants aver that afterwards, and after 
the 23d of January, i867, said committee having been 
appointed, and having recommended to said Council the 
names of five persons in their opinion suitable to be ballot- 
ted for as appraisers as aforesaid, said City Council selected 
out of said names by ballot, those of Miles Greenwood and 
Henry Kessler, and informed these defendants of the se- 
lection of said Greenwood and Kessler as such appraisers, 
and these defendants therefore selected Oliver G. Steele 
and Henry Day, as appraisers on their part, and notified 


ay) 


said City Council of said selection, and said four ap- 
praisers then met at said city, on the 18th day of May, 
1867, and organized by selecting Henry Kessler as 
Chairman, and Henry Day as Secretary, and met again 
at said city, at divers other days and times, by adjourn: 
ment, for the purpose of selecting a fifth appraiser under 
said contract, and then proceeding with said valuation, 
but having as yet failed to agree in the selection of such 
fifth appraiser, have adjourned to meet on the call of said 
Kessler, chairman. 

Anc the said Cincinnati Gas Light and Coke Company 
further say that by force of the said Act of the General 
Assembly, and the provisions thereof, they still continue 
to be, and are, a body corporate and politic, in fact and 
in name, and are entitled to do all lawful acts, and to 
enjoy all the rights, privileges, franchises and immunities 
allowed to them or conferred on them, by said Act, or 
said contract, or by the law of the land, by virtue 
whereof the said Cincinnati Gas Light and Coke Com- 
pany, for all the time in said information in that behalf 
mentioned, and for twenty years prior to the filing of the 
same, have used and exercised the liberties, privileges 
and franchises following, to-wit: that of being a body 
corporate and politic in law, fact and name, by the name of 
The Cincinnati Gas Light and Coke Company, and by 
the same name, to plead and be impleaded unto, answer, 
and be answered unto; and also, of having and exercising 
an exclusive right to open and use the streets, lanes, 
alleys and commons of the City of Cincinnati for the in- 
troduction of pipes and other apparatus for gas, for the 
purpose of conveying gas to the said city and citizens 
thereof; and also that of conveying gas through pipes 


56 


and other apparatus laid in the streets, lanes, alleys and 
commons of the said City of Cincinnati, and supplying 
the same to the said city and citizens thereof, at the rate 
of two dollars and fifty cents for every thousand cubic 
feet thereof, to each consumer of the same, other than 
the said city. 

And as to the residue of the liberties, privileges and 
franchises in the said information above specified, upon 
the said State of Ohio, supposed to be usurped by the 
said Cincinnati Gas Light and Coke Company, they say 
they never used, nor do they now use, the residue of said 
liberties, privileges and franchises—without this—that 
the said Cincinnati Gas Light and Coke Company, the 
said liberties, privileges, and franchises in said informa- 
tion above mentioned, or any of them, have usurped or 
did usurp, upon the said State of Ohio, in manner and 
form as by the said information, is above alleged against 
them; all which the said defendants are ready to verify 
and prove, as the Court shall award. 

Wherefore, they pray judgment, and that the said 
liberties, privileges, and franchises may be allowed and 
adjudged to them. 


E. A. FERGUSON, 


HOADLY, JACKSON & JOHNSON, 
Attorneys for Defendants. 


SUPREME COURT OF OHIO. 


December Term, 1868. 


THE STATE OF OHIO, 


On the Relation of the Attorney General, 


THE CINCINNATI GAS LIGHT AND 


VS. Fifth Rejoinder, 
COKE COMPANY. 


And the said Cincinnati Gas Light and Coke Company, 
by leave of the Court, for a further rejoinder in this behalf 
say, that the said State of Ohio ought not to be admitted 
or received to plead the said replication, by it thirdly 
above pleaded, because they say that the said Attorney 
General, acting herein as relator, filed the information 
aforesaid upon complaint caused to be made to him by 
the City Council of the City of Cincinnati, and not be- 
cause of anything coming to his knowledge otherwise, 
and further that heretofore, to-wit: 

On the 24th day of September, 1888, T. A. O’Connor, 
Esquire, then being the Prosecuting Attorney of Hamil- 
ton County, in said State of Ohio, upon the relation of 
Samuel M. Hart, Esquire, who was then the City Solicitor 
of the City of Cincinnati, and acted therein by direction 
of the City Council of said City, upon leave granted in 
the vacation of the District Court of the State of Ohio 


58 


in and for the Fifth Circuit thereof, being the said County 
of Hamilton, by the Honorable A. G. W. Carter, one of 
the Judges of said Court, filed an information in the 
nature of guo warranto in the said District Court, whereby 
the said Prosecuting Attorney for the said State of Ohio, 
gave the Court then to understand and be informed, that 
the said Cincinnati Gas Light and Coke Company was a 
corporation, having its principal place of business in the 
city of Cincinnati, County of Hamilton aforesaid, created 
by and under the laws of the State of Ohio, organized 
pursuant to an Act of the Legislature, entitled “An Act | 
to incorporate the Cincinnati Gas Light and Coke Com- 
pany,” passed April 3, 1837, and the acts amending the 
same. ‘That by the terms and provisions of said Act of 
incorporation, the said Cincinnati Gas Light and Coke 
Company was empowered and authorized to manufacture 
and sell gas, to be made from any or all of the sub- 
stances, or a combination thereof, from which inflammable 
gas is usually obtained, and to be used for the purpose 
of lighting the city of Cincinnati, or the streets thereof, 
and any buildings, manufactories, public places, or houses 
therein contained, and to erect necessary works and appa- 
ratus, and to lay pipes for the purpose of conducting the 
gas in any of the streets or avenues of the said city. 

That it was further enacted by Section 6 of said Act, 
that any future legislation might alter, modify or repeal 
said Act. 

That by the terms of an Act of the Legislature, 
entitled “An Act to amend an Act to provide for the 
organization of cities and incorporated villages,” passed 
March 11, 1853, the said Act of incorporation was so 


ert =. eee a 


59 


altered and modified that the City Council of said city of 
Cincinnati, was authorized and empowered to regulate 
by ordinance of said City Council, from time to time, the 
price which said Cincinnati Gas Light and Coke Company 
should charge for any gas furnished by said Company to 
the citizens, public buildings, lanes, streets or alleys in 
said city of Cincinnati. And that it was further enacted 
by the terms of the provisions of said Act, that the said 
Company should in no event charge more for any gas 
furnished to said city, or to individuals than the price 
specified by ordinance of the City Council. And that it 
was further provided by said Act that a neglect to furnish 
gas to the citizens or other consumers of gas, or to the 
said city of Cincinnati, by said Company, in conformity 
to the provisions of said Act, and in accordance with 
the prices fixed and established by Ordinance of said 
City Council, from time to time, shall forfeit all rights 
of said Company under the charter by which it had been 
established. 

That in pursuance of the said authority so conferred, 
the said City Council of Cincinnati, on August 31, 1853, 
duly passed an Ordinance, entitled, “An Ordinance 
regulating the price which the Cincinnati Gas Light and 
Coke Company should charge for gas furnished by said 
Company to the citizens, or for public buildings, streets, 
lanes, alleys, public landings and commons in the city of 
Cincinnati,” whereby it was ordained by said City Council 
of the city of Cincinnati, that from and after the first day 
of September, in the year 1858, the price which the Cin- 
cinnati Gas Light and Coke Company should charge for 
gas furnished by said Company to the citizens or private 


60 


consumers, or for public buildings, Council Chamber, 
offices, court-rooms, station or engine-houses, including 
buildings owned by the County of Hamilton, should be 
two dollars aud twenty-five cents for each thousand cubic 
feet and no more. 

That the said defendant, the Cincinnati Gas Light and 
Coke Company, had wholly disregarded the requirements 
and obligations imposed upon it by siid ordinance of the 
City Council, and had failed, neglected and refused, at 
the county aforesaid, to furnish gas to the citizens and 
other consumers of gas, in said city of Cincinnati, at the 
rate per thousand cubic feet as fixed and established by 
said City Council aforesaid, and the said defendant had 
wrongfully and persistently exacted from the said citizens 
and other consumers of gas, at least two dollars and fifty 
cents for each and every thousand cubic feet of gas con- 
sumed by said citizens and other consumers of gas; and 
the said Cincinnati Gas Light and Coke Company had 
thereby worked a forfeiture of its corporate rights, privi- 
leges and franchises. 

Wherefore judgment was demanded that the defendant, 
the Cincinnati Gas Light and Coke Company be excluded 
from all corporate rights, privileges and franchises, and 
that said corporation be dissolved. 

That afterward, to-wit: On the 29th day of October, 
A.D. 1858, the said Cincinnati Gas Light and Coke 
Company filed in said District Court their several pleas 
to said information, the first of which was as follows: 

“And now the defendants, the Cincinnati Gas Light 
“and Coke Company, come by their attorney, and having 
“heard the said information read, they say they ought 


61 


“not to be troubled by the said State of Ohio, by reason 
“of the premises in said information specified, because, 
“protesting that the said information and the matters 
“therein contained, are not sufficient in law, to which 
“said Cincinnati Gas Light and Coke Company are not 
“bound to answer unto by the law of the land, yet for plea 
“in this behalf, say that the Legislature of the State of 
“QOhio, by a certain Act passed on the third day of April, 
“in the year 1837, entitied ‘An Act to incorporate the 
“Cincinnati Gas Light and Coke Company,’ did enact 
“that the persons therein named, and their associates and 
“successors, should be created a body, corporate and 
“politic, with perpetual succession, by the name of the 
“Cincinnati Gas Light and Coke Company, and by that 
“name should be capable of contracting and being con- 
“tracted with, sueing and being sued, and have full power 
‘to acquire, hold, occupy and enjoy all such real and 
“personal estate as might be necessary and proper for 
“the construction, extension and usefulness of the works 
“of said Company. 

“That said Company should have full power and 
“ authority to manufacture and sell gas, to be used for 
“the purpose of lighting the City of Cincinnati, or the 
“ streets thereof, and any buildings, manufactories, public 
“ places, or houses therein contained, and to erect neces- 
“sary works and apparatus, and to lay pipes for the 
“ purpose of conducting the gas, in any of the streets or 
“ avenues of the said city. 

“ Tt was also provided in and by said Act, that said 
“ Company should be liable in its corporate capacity, in 
“ all the capital stock, moneys and effects, for all the 


62 


“ debt or debts at any time owing by said Company, and 
“ should the effects of said Company be insufficient to 
“ satisfy all demands against the same, then the indivi- 
“ dual stockholders of said Company should be held 
“ individually liable for all unsatisfied claims against the 
“ Company, in proportion to the amount of stock held or 
“ owned by them respectively, and by the sixth section of 
“ the Act it was provided that any future legislation might 
“ modify, alter or repeal said Act—all which will more 
“ fully appear by reference to said Act of incorporation. 
“They further say that on the 16th day of June, 1541, 
“ the City of Cincinnati, by Ordinance passed by the City 
“ Council of Cincinnati, of that date, entered into a con- 
“ tract with James F Conover, in which ordinance and 
‘ contract if was ordained that said Conover, his asso- 
“ ciates, their heirs and assigns should be, and they were 
“ thereby vested with the full and exclusive privilege of 
“using the streets, lanes, commons and alleys of said 
“ city of Cincinnati, in the State of Ohio, for the purpose 
“ of conveying gas to said city and citizens thereof, for 
“ the term of twenty-five years from the date thereof, and 
“ thereafter until the same should be purchased by the 
“ City Council of Cincinnati, as therein provided for, and 
“ should have full and exclusive power and authority to 
“ open and use the strets, lanes, commons and alleys, for 
“ the introduction of pipe and other apparatus for gas: 
“ and in consideration of the privilege thereby granted to 
“ said Conover, his associates, their heirs and assigns, he 
“ and they should furnish to the said city, on the several 
“ streets, lanes, commons and alleys, in which the leading 
“ or main pipes for supplying the citizens with gas light 


63 


“ should be laid and in use, such quantity of gas as might 
“be required by the City Council for public lamps, at 
“ two-thirds of the lowest average price at which gas 
“ should or might be furnished to private individuals in 
“the cities of New Orleans, Baltimore, New York, Louis- 
“ville and Pittsburg, the lamp-posts. connecting pipes, 
“ metres and lamps being furnished by and at the expense 
“ of the said city. 

“ Tt was further provided in and by said Ordinance and 
“ contract, that the privileges thereby granted should not 
“ be forfeited by any temporary failure on the part of said 
“Conover and his associates, their heirs and assigns, to 
“perform any of the conditions from them exacted, (except 
“as to the commencement of said works) when such 
“ failures are occasioned by accident, untoward events, or 
“ the want of necessary repairs in the machinery or appa- 
“yatus of said gas works. It was further provided that 
“atany time after the expiration of the said twenty-five 
“vears, the said City Council should have the right and 
“nrivilege of purchasing from said Conover, his  asso- 
“ ciates, their heirsand assigns, or successors, their pipes, 
“buildings, fixtures.and other apparatus, owned and used 
“by them, in and about providing the city and citizens 
“with gas, at.a fair price and compensation, which price 
“was to be ascertained and: determined. by five disinter- 
“ested persons, two of whom. should be selected. by: the 
“ City Council, and two by. said Conover, his associates, 
“their heirs and: assigas, or. successors, and the fifth by 
“the four thus selected. or chosen, the terms of. which 
“Ordinance were accepted by, James. F. Conover, who 
“afterward on: the day, of , assigned and 


64 


“transferred the one-half of said contract, and all the 
“riohts and privileges thereof, to James H. Caldwell. 
“The defendants further say, that after the Cincin- 
“nati Gas Light and Coke Company became duly or- 
“oanized under said charter, the said James I. Conover 
“and James H. Caldwell, for valuable consideration, on 
“the day of , assigned and transferred the 
“said contract, and all the privileges of lighting the said 
“City of Cincianati, and using the streets thereof for 
“the purpose mentioned in said contract, to the Cincin- 
“nati Gas Light and Coke Company, so incorporated as 
“aforesaid, and which assignment was afterward made 
“known to the City Council of the City of Cincinnati, 
“on the 14th day of September, 1842, on which day the 
“said City Council passed a resolution, which, after reci- 
“ting said assignment, resolved that the City Council 
“thereby recognize the said Cincinnati Gas Light and 
“Coke Company as the assignee of all the rights and 
“privileges granted to the said James I. Conover and 
“his assigns, upon the terms and conditions which are 
“specified m the said Ordinance of 16th of June, 1841. 
“And the defendants insist, by virtue of said Ordi- 
“nance so made, and of the acceptance thereof by said 
“ James I’. Conover, and by virtue of the assignmenis so 
“made as aforesaid, the defendants became invested with 
“the exclusive privilege of lighting the City of Cincin- 
“nati with gas, and of furnishing the city and citizens of 
“Cincinnati with gas for the period of twenty-five years, 
“upon the terms mentioned and set forth in said Ordi- 
“nance, and which contract they claim can nct be altered, 
“ modified, or in any way changed, by any legislation of 


65 


“the State of Ohio, or by any Ordinance of the City 
“Council of the City of Cincinnati, and defendants deny 
“that the City of Cincinnati has ever been charged a 
“larger price for gas consumed by said city on the seve- 
“ral streets, lanes, commons and alleys of said city, than 
“two thirds of the lowest average price at which gas has 
“been furnished to private individuals in the cities of 
“New Orleans, Baltimore, New York, Louisville and 
“ Pittsburg. 

“And the defendants deny that the Legislature or 
“ General Assembly of the State of Ohio, has ever passed 
“any law altering or modifying the said Act entitled ‘An 
“ Act to incorporate the Cincinnati Gas Light and Coke 
“Company. All which the defendants are ready to 
“ verify, and plead in bar of the plaintiff’s proceedings.” 

“And afterwards, to-wit: on the 5th day of May, 
“ 1859, the said State of Ohio filed its demurrer to the 
“said first plea of the said Cincinnati Gas Light and - 
‘““ Coke Company, averring that the same, and the mat- 
“ ters and things therein set forth, were not sufficient in 
“¢ law to bar or preclude the State of Ohio from having and 
“ maintaining its said-action against the said Cincinnati 
“Gas Light and Coke Company, and by reason of the 
“ insufficiency of said plea in that behalf, the said State 
“of Ohio prayed judgment, ete. 

That afterwards, to-wit: on the llth day of May, in 
the April term of said District Court, 1859, the following 
judgment was entered in said cause, to-wit : 

“This cause came on to be heard on the plea filed by 
“ the defendant and the demurrer of the plaintiff thereto, 
“ and was argued by counsel, and the Court having duls 


66 


“ considered the same, find the said first plea filed, is 
“ valid in law, and that the facts in said plea set forth, 
“are a bar to the relief sought by the plaintiff in the in- 
“ formation in the cause. It is, therefore, ordered and 
“ adjudged that the demurrer filed by said plaintiff, be 
“ overruled; and the plaintiff not desiring to proceed 
“ further in the case, if is further ordered and adjudged 
“ that the plaintiff's information be dismissed, and that 
“ the defendant go hence without day.” 

All of which will more fully appear by the record: of 
said case now remaining in the said District Court. 

And the said Cincinnati Gas Light and Coke Company. 
further say, that said judgment of said District Court is 
in full force and unreversed. 

And further they say, that at the time of the rendi- 
tion of said judgment of said District Court, the capital 
stock of the defendants amounted to the sum of $766,- 
840 only, and that these defendants had then invested in 
the purchase of real estate, the laying of gas pipe, the 
building of gas-holders, and other permanent improve- 
ments and fixtures necessary for the prosecution of their 
business, and the lighting of said city, and the perform- 
ance of said contract, the sum of $834,708 only, and 
that since the date aforesaid, upon the faith, credit and 
confidence reposed in said judgment, and by it created, 
these defendants have purchased other. real estate, have 
laid, in said city, annually, much more than four thou- 
sand feet of leading pipe for gas, have kept and fully per- 
formed said contract on their part, and have supplied the 
public lamps of said city with gas, at the price fixed by 
said contract, of two-thirds the lowest average price at 
which gas was furnished, during the time aforesaid, to 


mar 


67 


private individuals in the cities of New Orleans, Baltimore, 
New York, Louisville and Pittsburg; have built new gas- 
holders and enlarged their works, and before the said 
16th day of August, 1867, had entered into separate 
written contracts with ten thousand five hundred and 
sixty-eight private consumers of gas, whereby they were, 
and ever since have been, and still are, bound and _ held 
to said consumers and each of them, to furnish them 
respectively with supplies of gas of the standard quality, 
for their several use and consumption, and in so doing 
they have been obliged to expend and have expended, in 
permanent improvements necessary to the performance 
of said contract with said city, and the prosecution of 
their business, and without which the same could not 
have been performed and prosecuted, the further and ad- 
ditional sum of $1,095,879, and have increased their 
capital stock, in accordance with law, to the total sum of 
$1,844,900, and their property is in all of a great value, 
to-wit: of not less than millions of dollars, all 
which, except the amount so, as aforesaid, invested at 
the date of said judgment, has been acquired and so in- 
vested in reliance upon said judgment, and used in the 
performance of said contracts with said city and said 
private consumers, and the supplying of said city and 
its citizens with gas. And this they are ready to verify. 
Wherefore, the said Cincinnati Gas Light and Coke Com- 
pany prays judgment, if the said State ought to be ad- 
mitted or received against the said record, to plead the 


replication by it thirdly above pleaded. 


K. A. FERGUSON. 
Hoapty, Jackson & JOHNSON, 
Attorneys for Defendant. 





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